The suspected billionaire kidnapper, Chukwudumeme Onwuamadike (popularly known as Evans), on Wednesday secured a rare victory against the police after a federal judge dismissed applications to stall his fundamental rights suit.
Judge Abdulaziz Anka also berated the police counsel, Emmanuel Eze, for “drinking Panadol for another man’s headache” after the lawyer attempted to speak for the Inspector-General of Police while appearing for the Commissioner of Police.
The judge had adjourned, on Tuesday, to rule on whether it would proceed to hear the fundamental rights suit filed by Evans’ lawyer, Olukoya Ogungbeje, after it was opposed by the police.
Mr. Eze, appearing for the police commissioner and the Special Anti-Robbery Squad, had argued that the applicant had not served the court processes to the IGP and the Nigeria Police Force.
He also argued that the applicant did not seek the leave of the court to hear the suit during the courts’ vacation, which began last month.
The police lawyer further argued that Mr. Ogungbeje ought to seek the permission of the court to enable him serve court processes to the IGP as well as the Police Force at their headquarters in Abuja.
Delivering his ruling on Wednesday, the judge dismissed all the arguments of Mr. Eze, noting that the applicant’s lawyer need not travel to Abuja to serve court processes on the police since it had already been done at Alagbon, Lagos.
Mr. Anka said since Mr. Eze had been in contact with the IGP’s office in Abuja, it presupposes that they ought to know about the suit and file their response.
“Counsel to the third and fourth respondents cannot open his mouth and speak otherwise when there is proof of service before the court,” the judge said.
“The court will proceed to hear the action as scheduled and all parties have right of appeal.”
The judge, however, turned down a request by Mr. Ogungbeje to award N100,000 against the police for stalling the hearing of the suit.
But he ruled in the applicant’s favour after Mr. Eze requested for “a short adjournment” to enable the police prepare for the hearing. The judge pointed out that Tuesday was earlier scheduled for the hearing before the police’s application.
“The applicant is still in detention as we speak. All the parties in the suit have been served, all processes are in, nothing to delay again,” Mr. Ogungbeje had argued.
The judge agreed with him. He said since the accused’s counsel filed his reply on points of law and served the police since July 20, the latter ought to have been prepared for the hearing.
“This case came up for mention on 30th June, 2017, it’s almost eight weeks of filing this action without any hearing, which ordinarily should be done within seven days,” said the judge.
“Emmanuel Eze cannot now cry foul on the issue of fair hearing because ample time has been given to all parties. This application is refused and hearing will commence immediately. All parties have right of appeal.”
‘A CAPITAL OFFENCE’
In his argument for the enforcement of the fundamental rights of Evans, Mr. Ogungbeje said the police should charge him to court if they have any case against him.
“The facts of this case are clear and straightforward,” Mr. Ogungbeje said.
“The substratum is that the continued detention of the applicant without trial is unconstitutional. The Constitution is clear as to what should be done when the police arrests a suspect, it’s unambiguous.”
Mr. Ogungbeje cited several judicial authorities, including a Court of Appeal decision that stated that “the position of the law presupposes that while the police have a duty to detain a suspect, it must first investigate the crime.”
“You cannot detain a Nigerian citizen without complying with the decision of the law,” said Mr. Ogungbeje.
“The respondents have run foul of the law, especially the first and second respondents. When the material of the law is not challenged, it is deemed that they have accepted same,” he said, regarding the IGP and Nigeria Police failure to file a response.
“They have not filed any response despite being served.
“The third and fourth respondent made a very spurious aversion that they don’t need a court order to hold the applicant. Nigeria is a country governed by laws and the position of the law must be complied with.”
On the police denial of instigating a media trial against Evans, Mr. Ogungbeje said his client was in police custody when journalists were having a field day with him.
“My argument is you either charge or free him. If someone is accused of a crime, take him to court and tell the court why you’ll continue to hold him.”
Midway into the hearing, Henry Obasi, a police lawyer, announced appearance for the IGP and the Nigeria Police Force, and then argued that the applicant’s case had to do with murder, kidnapping and armed robbery.
“Section 35 of the Constitution of the Federal Republic of Nigeria is not absolute,” said Mr. Obasi while noting that the section stipulates ‘two months from the date of arrest or detention in the case of a person who is in custody or is not entitled to bail.’
“The applicant committed a capital offence so I urge your lordship to dismiss application. The DPP (Director of Public Prosecution) will soon charge him to court. He has not been detained for up to two months,” Mr. Obasi said.
“The applicant’s application is unmeritorious and should be dismissed. If he is released on bail, he may go back to his profession.”
Evans was arrested by the police on June 10 and has been in detention ever since.
Aligning his argument with that of Mr. Obasi, Mr. Eze said releasing Evans would place a lot of risk on Nigerians including judges and lawyers who had been victims of kidnapping in the past.
Mr. Eze argued that the applicant was arrested by the Inspector General of Police’s Intelligence Response Team and not the Special Anti-Robbery Squad, and as a result, the latter should not be involved in the matter.
On the claims of trying Evans in the media, Mr. Eze said there was nothing before the court to show that he had been subjected to media trial.
“Which of the media? Who was the judge? How many years has he been sentenced?”
Mr. Eze insisted the police has a prima facie case against Evans and that the constitution was made to protect the rights of the society against the rights of one individual.
“It is not up to 90 days since he has been arrested,” Mr. Eze said.
“There is an order of court for his remand. Assuming, not conceding that it does not exist, we are still within time.
“Also, the fourth respondent is not a legal person, he cannot sue or be sued particularly when he is not involved in this matter.
“Finally, all we have in this case is an affidavit of a man (Evans’ father) who does not know the facts of the case or even seen the applicant. I urge the court to dismiss the application with punitive cost so that it will serve as a deterrent to everyone.”
The police did not produce any remand order before the court.
In his further response, Mr. Ogungbeje argued that no matter the brilliance of the first and second respondents’ arguments, they were invalid since they did not file any process to challenge the suit.
“The argument that they have power to arrest and detain without court order for capital offences is no longer current,” said Mr. Ogungbeje, citing judicial authorities to back his claim.
“It is only when an accused has been charged to court and is only seeking for bail that Section 35(7) can come in. In this case, the applicant has not been arraigned.
“What they should have done is to arraign the applicant and to inform the court that they’ll remand him in their custody since they have not finished investigation.
“If they want to charge they should charge him, the applicant is not saying they should not try him.”
The judge adjourned till August 29 for judgment.
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